Explanation on why determining appeal PPA-400-2126 would prejudice or otherwise undermine the Scottish Ministers’ determination of the Mossend appeal: EIR review

Information requested

1. The Reporter to provide a detailed explanation as to why he considers that determining appeal PPA- 400-2126 would prejudice or otherwise undermine the Scottish Ministers’ determination of the Mossend appeal.
2. A detailed explanation as to why the Reporter considers the Mossend appeal must be determined first.
3. Provide a copy of the Reporter’s most recent draft decision notice in appeal PPA-400-2126.
4. Provide copies of all correspondence between the Reporter, Chief Reporter and DPEA staff concerning the decision to sist appeal PPA-400-2126, both before and after the Direction in Mossend appeal was given.

Response

I have concluded that a different decision should be substituted.

Your e-mail of 28 June provides clarity on why you consider a review of the original request is required. You detail why, in your view, the application of the exceptions under Regulations 10(4)(d) and 10(4)(e) were incorrectly applied to the requested information relating to Point 3 above and to one internal email in respect of Point 4. You also consider that the public interest test in respect of both these applied exceptions were not met.

At Point 6 of your request for review you consider there to be some missing information. The reason for that arises from reference to a meeting of 12 April within an email which was included in the documents released following your initial request for information.

I have fully considered all the points you raise including reference to decisions made by the Scottish Information Commissioner and guidance from the United Nations Economic Commission for Europe. I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) and turn to those below.

Having reviewed the exception applied to the reporters most recent draft decision I accept that the status of the reporters decision as a draft does not in itself imply that the decision can be classed as material in the course of completion. I have also concluded that no further work was intended on the document and therefore that document was complete.

However I have further concluded that as this document has only been circulated internally, at this stage, that Regulation 10(4)(e) applies to this information as it provides an exception from the duty to make environmental information available, where the request relates to internal information. In reaching this decision I have regard to the Scottish Information Commissioners Guidance Note which confirms that a document which has been circulated internally is an example of internal communication. In this instance the reporters draft decision notice has not been circulated beyond DPEA.

Having applied this exception to this information I am required to consider the public interest test. I recognise that there is a clear public interest in the government and the planning process being open, transparent and accountable with regard to public scrutiny of both the decision making process and decisions themselves.

However, releasing this information at this stage would provide a misleading picture to the public and provide unnecessary uncertainty given the content of the decision notice will be subject to change. There is a strong public interest in allowing the private space required to come to an objective decision and follow due process. In addition to this I have concluded that the public interest lies in ensuring that material is not disclosed when it might misinform the public. Therefore, I have concluded that the public interest lies in protecting the integrity of the process and upholding the exception.

I now turn to the one e-mail which was being withheld under Regulation 10(4)(e). In the first instance I can confirm that an error was made in our original response to your information request. The e-mail being withheld referred to the Clarendon appeal in the passing but the reference to the actual decision related to another appeal being dealt with by the same reporter, which was similarly in sist for the same reasons as the Clarendon appeal.

I therefore conclude that this e-mail should have been provided to you subject to the appropriate redactions on information relating to another appeal, which is outwith the scope of your request.

I have therefore enclosed a copy of this e-mail.

Missing Information

I further reviewed the searches performed for this request and I found 1 calendar invitation which formed part of the correspondence you requested, relating to a meeting held on 12 April, and to which you refer to in your review request. This was not included in the initial search because it was incorrectly not considered as written correspondence. I have therefore enclosed that calendar invitation in this response as it falls under your original request and as clarified in your e-mail of 28 June. I can confirm that there were no other correspondence items held in respect of the 12 April meeting. Under the terms of the exception at regulation 10 (4) (a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not hold the information because no agenda was issued in respect of the meeting. I can confirm that no notes, minutes or action points were taken by any of the attending parties either during or after the meeting. A follow up email was issued by the Chief Reporter, on 26 April 2023, which has already been released.

This exception is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about discussions held during the meeting of 12 April, clearly we cannot provide information which we do not hold.

Please note, an exception under regulation 11(2) of the EIRs (personal information) applies to some of the information attached because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

EIR - 202300364142 - Information release

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